Delhi District Court
Court In Its Judgment Titled Hiten P. ... vs Bratindranth Banerjee on 30 August, 2011
IN THE COURT OF SHRI SUNIL KUMAR, METROPOLITAN
MAGISTRATE, ROHINI COURTS, DELHI
Complaint Case No. 8634/1/10
Sh. Surjeet Singh
S/o Sh. Onkar Singh
R/o VP82A,
Pitampura, Delhi. ............Complainant
Versus
Sh. Bhupinder Singh
S/o Sh. Tara Singh
R/o Gold Star Tailor,
22, Gurdwara Road,
Jalandhar Cantt.,
Punjab. ............Accused
Date of Institution : 14.04.2009
Date of reserving judgment : 19.08.2011
Date of Judgment : 26.08.2011
JUDGMENT:
By this order I shall pronounce the final judgment. Facts of the case in brief are as under that : Complainant has filed this complaint u/s 138 / 142 of Negotiable Instruments Act, 1881, against the accused alleging that the accused CC No. 8634/1/10 Contd.....
has good business relations with the complainant and in furtherance of these relation, the accused approached the complainant and requested for a loan of Rs.1,00,000/ in the first week of January, 2009 and the complainant after seeing the past good relations between them, had given a sum of Rs.97,000/ to the accused as only that amount could be arranged by him at that time. After persuasion by the complainant, the accused issued a cheque bearing no. 232604 dated 25.01.2009 amounting to Rs.97,000/ drawn on State Bank of India, Personal banking branch Model Town, Jalandhar, Punjab144003. This cheque was presented by the complainant and the same was dishonoured vide cheque return memo dated 16.02.2009 with the remarks "Accounts Closed" . One legal notice dated 06.03.2009 was also given to the accused, however, no payment was made. Hence, this complaint case is filed by the complainant.
2. Accused appeared on 25.01.2010 in person with counsel after service of summons upon him. After compliance of section 207 CrPC, notice of accusation u/s 251 CrPC was given to him to which he pleaded not guilty and claimed trial and states in his defence that the cheque in question pertains to his bank account and bears his signature. Although, he had not issued the said cheque to the CC No. 8634/1/10 Contd.....
complainant. He further stated that he had not received any legal notice sent by the complainant in connection with this case. The cheque in question was given by him to one Sh. Tarvinder Singh, who is a relative of the complainant and who had given this cheque to the complainant. He did not know the complainant at all. He had also lodged a FIR in Jallandhar with regard to the lost of his cheque book. He had copy of the complaint made by him in the police station in this regard.
It is important to mention here that complainant has examined himself only as complainant witness in his CE and from the side of accused also, accused examined himself only as DW1 in his defence after allowing his application u/s 315 CrPC.
4. In his evidence, complainant Sh. Surjeet Singh stated that he and the accused had good business relations and in pursuance of the same he advanced a loan of Rs.97,000/ to the accused. This loan was not repaid by the accused as per his promise and in discharge of his liability to repay the amount he issued a cheque Ex.CW 1/A , which was dishonoured with the remarks "Account Closed" vide cheque returning memo Ex.CW1/B. Thereafter one legal notice dated 06.03.2009, which is Ex.CW1/C was sent to the complainant. However, no payment has CC No. 8634/1/10 Contd.....
been made by the accused.
5. In his crossexamination complainant has stated that he know the accused from the last 34 years. The loan amount of Rs.97,000/ was received by the accused through his employee namely Amanpreet Singh and to whom the cheque was also handed over by the accused. The name, amount and date were not filled by the complainant in the cheque in question.
6. Thereafter the matter was fixed for defence evidence. In defence evidence accused examined himself as DW1 and in his examination in chief, he has stated that he has lost the cheque book and complaint regarding which was lodged with the local police and he also intimated the bank to this effect. The cheque in the said lost cheque book were signed by the accused previously. He further stated that those lost cheques were later found / recovered from one person namely Talvinder Singh, who is also a resident of Jallandhar, Punjab and against whom he filed a complaint case before District Court , Jallandhar, on 25.11.2006. He further deposed that a cheque of the same series from the lost cheque book was presented for payment by the complainant in the present case and he also sent legal notice to the accused. Accued CC No. 8634/1/10 Contd.....
further deposed that he also send a reply to the said legal notice through his counsel mentioning the fact that he do not know the complainant and the account from which the cheque in question is drawn was closed prior to the presentation of the cheque by the complainant and also that he(accused) did not owe any amount as there is no cause of consideration and he do not know the complainant either personally or professionally. Lastly, he deposed that he is not liable to be tried for any act as stated in the present complaint.
7. In his crossexamination, DW1 stated that he did not know the exact date of lost of his cheque book but he states that it was lost in the year 2006 and after that he had closed the account. He admitted the fact that the cheque book lost by him was containing 20 leafs of cheques, out of which only five cheques were signed by him. He admitted that he did not file all the complaint on record. He further states that he had filed 34 complaints on the judicial record. He again said two complaints are filed on record. He also denied the suggestion that complainant has filed genuine case against him. He further denied the suggestion that he did not sent any reply to the legal notice sent by the complainant.
CC No. 8634/1/10 Contd.....
8. Final arguments heard at length. Record perused thoroughly. I have heard the rival contentions of both the parties. I have perused the entire material on record alongwith the relevant documents.
9. It is important to discuss the scope of Section 138 Negotiable Instruments Acts.
Section 138 Negotiable Instruments Act lays down Provisions of the consequence of dishonour of the cheque and the limitation period prescribed for taking the steps accordingly.
"Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole on in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honor the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for (a term which may be extended to two years), or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless CC No. 8634/1/10 Contd.....
a. the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of is validity, whichever is earlier;
b. the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, (within thirty days) of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and c. the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation - For the purpose of this section, "debt or other liability" means a legal enforceable debt or other liability."
10. Section 139 of Negotiable Instruments Act also need to mentioned here: Section 139 of the NI Act further lays down the law regarding to the presumption which is stated to be in favour of the complainant. Section 139 NI Act further reads as under:
CC No. 8634/1/10 Contd.....
Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.
11. Section 139 NI Act, as stated above, draws a presumption that the holder of the cheque receives the cheque for discharge of a debt or liability and till contrary is proved if nothing contrary as shown by the drawee / accused then presumption goes in favour of the complainant and against the accused. It is further laid down by the Hon'ble Supreme Court in its Judgment titled Hiten P. Dalal Vs Bratindranth Banerjee (2001) 6 Supreme Court Cases 16, that section 138, 139 and 118 NI Act are to be rebutted specifically by the accused and it is obligatory on the court to presume the liability the drawer of the amount in every case where the such presumption is established.
12. Thus Section 138 read with section 139 NI Act lays down the consequences of dishonour of cheque and further lays down certain principles on the basis of which the liability of the drawer are to be ascertained. These essential principles are:
a. The cheque was issued by the drawer.
b. The cheque was issued for a valid consideration.
CC No. 8634/1/10 Contd.....
c. The cheque was presented and was dishonoured. d. Legal notice was sent within time period as prescribed. e. No payment was paid after receipt of the notice.
13. With regard to the first essential requirement i.e. the cheque was issued by the drawer, it is important to mention here that the accused admitted in his defence during notice of accusation that the cheque in question pertains to his bank account and bears his signatures thereof. However, he disputed the fact of issuing of the cheque in question to the complainant on the ground that he has lost his cheque book and later on, some of cheques of that series / cheque book were later found / recovered from one person namely Talvinder Singh, who is also a resident of Jallandhar, Punjab. Whereas, complainant in his cross examination deposed that cheque in question was handed over to his employee namely Amanpreet Singh from whom accused had received the loan amount of Rs.97,000/ and he also denied a suggestion that he received the cheque in question from one person namely Talwinder Singh. Merely denial of the fact by accused that he did not issued the cheque to the complainant not serve the purpose for rebutting the presumption lying in the favour of the complainant unless it has to be corroborated by some evidence. In the case in hand, in order to rebut CC No. 8634/1/10 Contd.....
the presumption of the issuing of the cheque, accused examined neither Talwinder Singh nor Amanpreet.
14. With regard to the second essential requirement i.e. whether the cheque was issued for a valid consideration, the complainant has stated that this cheque was given by the accused for discharging his liability pertaining to the loan taken by him. On this aspect during the cross examination of the complainant no question has been put to him on the point of loan amount given by the complainant to the accused. Further, on this aspect accused has not shown anything to the contrary that the cheque in question was not issued for a valid consideration but he only stated during his examination in chief that he do not owe any amount to the complainant as there is no cause of consideration. On the other hand complainant has lead his evidence on the point that he was having friendly relation with the accused and the accused has asked for a friendly loan of Rs.1,00,000/ but he could able to given him only Rs.97,000/ which was not repaid by him and as per insisting of the complainant the accused issued the cheque for discharging his liability. In these circumstances, therefore, as there is no evidence to the contrary, thus the complainant has been able to show that in question was issued for a valid consideration.
CC No. 8634/1/10 Contd.....
15. The third essential requirement that the cheque was presented
and dishonoured is also disputed by the accused. During his
examination in chief, he deposed that his bank account to which cheque was drawn was closed prior to the presentation of the cheque. It is pertinent to mention here that during the crossexamination accused deposed that after lost of cheque book he closed his bank account. On that point the accused has not placed on record any application which he sent to the bank regarding lost of cheque book and closing of account. Therefore, it can be presumed that the accused with malafide intention issued the cheque in question to the complainant which he already know that the same will be dishonoured on its presentation.
16. With regard to the fourth essential requirement i.e. legal notice was received by the accused is also admitted by the accused during his examination in chief as DW1. Further, even he also admits of sending reply to that notice. Accused has not made any payment to the complainant which is a matter of record and the same has been duly supported by the evidence lead by the complainant that "accused has not made any payment on receipt of legal notice.
CC No. 8634/1/10 Contd.....
17. In these circumstances, all the essential ingredients have been shown by the complainant by way of affidavit. Thus, he has shifted the onus of proving his case against the accused and the onus as per the law is upon the accused to disprove the case of the complainant. Any averment made by the accused at the time of making defence during notice of accusation u/s 251 CrPC is not supported by any evidence like filing of the copy of FIR as stated to be lodged at Jallandhar, pertaining to the lost of cheque book, also not filed any documents to show the status of any such complaint filed before the CJM, Jallandhar. Besides this one copy of the statement of facts is filed by the accused at the stage of final arguments which bears two stamps one of the Executive Magistrate and another of Police Station Cantt. Jallandhar on which some endorsement is made on Gurmukhi language. After careful perusal of this copy, nothing can be found relevant which serve the purpose of the accused for corroboration of his defence.
18. In the present case, after considering the evidence led by the complainant against the accused, it is crystal clear that the complainant has been able to show that :
a. The cheque in question was issued by the accused. b. This cheque was issued for a valid consideration i.e., for CC No. 8634/1/10 Contd.....
discharging his liability for repay his friendly loan taken by the accused.
c. Cheque was dishonoured with the remarks "Account Closed". d. Legal notice was sent by the complainant which was duly received by the accused.
e. No payment has been made after receiving the legal notice.
19. In these circumstances, therefore, in the light of the above mentioned reasonings, I am of the considered opinion that complainant has been able to prove the liability of the accused beyond reasonable doubt and he has been able to prove the liability of the accused u/s 138 Negotiable Instrument Act. Therefore, accused Bhupinder Singh S/o Sh. Tara Singh is liable to be convicted for the offence u/s 138 Negotiable Instruments Act. Let arguments on conviction shall be heard separately.
Announced in the open court today i. e. on 26.08.2011 (SUNIL KUMAR) Metropolitan Magistrate ROHINI/DELHI 26.08.2011 CC No. 8634/1/10 Contd.....
IN THE COURT OF SH. SUNIL KUMAR, MM/ROHINI/DELHI ORDER ON SENTENCE 30.08.2011 Present: Complainant in person with ld. counsel.
Convict in person with Ld. counsel.
Arguments on point of sentence heard. The counsel for the complainant states that convict be awarded with maximum punishment as per law.
On the other hand, counsel for the convict prays for lenient view and submits that convict has a family to look after and support. He further submits that he is the sole bread earner of his family. Counsel for the convict further submits that convict has no previous criminal record and if convict is sent to jail, his whole family will suffer.
In view of the above submissions and facts of the case, convict is sentenced to undergo simple imprisonment for two months for offence under Section 138 NI Act. Convict is also directed as per Section 357 (3) Cr.P.C. to pay compensation of Rs. 1,50,000/ to the complainant towards the cheque in question within a month time.
At this stage, counsel for the convict submits that convict intends prefer an appeal to the superior courts and has moved an application for suspension of sentence and grant of bail for a period of one month.
The accused is admitted to bail on furnishing a bail bonds in the sum of Rs. 15,000/ with one surety bond in the likeamount. Requisite bail bonds furnished and accepted till 30.09.2011.
The order on sentence is suspended till 30.09.2011. Copy of the order on sentence and judgment be given dasti to convict.
(SUNIL KUMAR)
MM/Rohini
Delhi/30.08.2011
CC No. 8634/1/10 Contd.....